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NO.
COA04-581

NORTH
CAROLINA COURT OF APPEALS

Filed:17 January 2006

MARK J. ARMSTRONG,

Employee,

Plaintiff,

v.North
Carolina Industrial Commission

I.C. File
No. 452760

W.R. GRACE & CO.,

Employer,

CONTINENTAL CASUALTY

COMPANY,

Carrier,

Defendants.

Appeal
by plaintiff from opinion and award of the North Carolina Industrial Full
Commission entered 5 December 2003 by Commissioner Laura Kranifeld Mavretic.Heard in the Court of Appeals 19 April 2005.

On
9 April 2002, Deputy Commissioner Amy L. Pfeiffer heard Mark J. Armstrong’s
(“plaintiff”) workers’ compensation claim filed against W.R. Grace & Co.
(“defendant-employer”) and Continental Casualty Company (“defendant-carrier”),
collectively defendants.On 8 May 2003,
the Deputy Commissioner issued an Opinion and Award in favor of
defendants.On 14 October 2003, the
full Commission heard plaintiff’s appeal.On 5 December 2003, an Opinion and Award in favor of defendants was
filed by Commissioner Laura K. Mavretic, with Commissioner Bernadine S. Ballance
concurring and Commissioner Thomas J. Bolch dissenting.It is from the full Commission’s Opinion and
Award that plaintiff appeals.

The
full Commission’s findings of fact tended to show that in 1975, defendant-employer
hired plaintiff as a general helper.Plaintiff also worked as a maintenance helper, a machine operator, and a
tooling assembler.Plaintiff worked for
defendant-employer until he took a leave of absence due to pain and loss of
range of motion in his elbows.As a
machine operator for approximately thirteen years, plaintiff was required to
use his upper extremities frequently and repetitively and with load-bearing
force.Plaintiff prepared raw product,
finished the product, and cleaned and adjusted the machines.Plaintiff’s job duties required lifting,
transporting, handling, reaching, and making load bearing movements.Plaintiff began to experience left elbow
problems while working in May 1989.Shortly thereafter, plaintiff experienced pain in his right elbow while
working.Plaintiff continued to work
for defendant but did not seek medical treatment until 26 January 1990, when he
was seen by Dr. E. O. Marsigli (“Dr. Marsigli”), an orthopaedist.Plaintiff reported to Dr. Marsigli that he
had been unable to fully extend his upper left extremity since May 1989.

On
or about 23 December 1991, Dr. Marsigli diagnosed plaintiff with post traumatic
arthritis of the left elbow.On 19
February 1996, however, Dr. Marsigli stated by letter that he could not
determine the cause of plaintiff’s bilateral elbow condition, and that “job
related traumatic arthrosis of the elbow has not been described in the
literature to his knowledge.”On 8 July
1992, Dr. Helen E. Harmon (“Dr. Harmon”), a rheumatologist, diagnosed plaintiff
with questionable rheumatoid arthritis.Dr. Harmon did not comment as to whether plaintiff’s work situation
caused or exacerbated his bilateral elbow symptoms.

On
21 July 1992, plaintiff transferred from the position of operator to tooling
assembler, which required the use of both upper extremities to change inserts,
change cavities, change needles and clean needles.

Plaintiff
sought additional treatment from Dr. Ralph W. Coonrad (“Dr. Coonrad”), an
orthopaedic surgeon, in October 1992.On 22 October 1992, plaintiff ceased employment with defendant.On 23 November 1992, Dr. Coonrad performed a
left elbow replacement on plaintiff due to plaintiff’s left elbow symptoms.
After the surgery, Dr. Coonrad diagnosed plaintiff with arthrosis of both
elbows due to rheumatoid arthritis.

A
second physician, Dr. William Byrd (“Dr. Byrd”), diagnosed plaintiff with
severe bilateral synovitis and pain of plaintiff’s elbows with uncertain
etiology on 3 August 1993.Dr. Byrd could
not exclude rheumatoid arthritis as an underlying diagnosis.On 28 September 1993, Dr. Coonrad performed
a total right elbow replacement.

Plaintiff
received additional medical treatment later in 1993. On 21 December 1993,
rheumatologist Dr. David S. Caldwell (“Dr. Caldwell”), determined that
plaintiff might have an atypical presentation of rheumatoid arthritis.Dr. Caldwell further stated that plaintiff’s
job might have had something to do with plaintiff’s bilateral elbow problems.

On
12 July 1994, plaintiff filed a Form 18 with the Industrial Commission.In the Form 18, plaintiff claimed that
repetitive load bearing movements with his upper extremities caused traumatic
arthritis.Plaintiff’s bilateral elbow
problems had begun five years prior to the filing of the Form 18 with the
Industrial Commission; he was diagnosed with traumatic arthritis two and one
half years prior to filing his Form 18 with the Industrial Commission; and he
was diagnosed withrheumatoid arthritis
twenty months prior to filing the Form 18.

Dr.
Coonrad informed plaintiff on 3 May 1996, that it was unlikely that plaintiff’s
job caused his rapidly progressive and severe arthrosis of each elbow, and
although it might have been an aggravating condition, Dr. Coonrad could not
determine a percentage or degree of aggravation.Dr. Caldwell confirmed plaintiff’s diagnosis of atypical
presentation of rheumatoid arthritis when x-rays revealed that plaintiff was
experiencing erosive changes in his feet in January 2001.

In
October 2000, plaintiff filed a Form 33 requesting a hearing on this
matter.There is no evidence in the
record to show that other employees suffered from hand and arm injuries in the
course of their employment.The Deputy
Commissioner found that there has been no person other than plaintiff who has
ever developed complete bilateral elbow joint destruction while performing an
operator job with defendant-employer.

In
Dr. Caldwell’s deposition, he stated that (1) because of plaintiff’s pre-existing
rheumatoid disease, plaintiff had an increased risk of developing an
exacerbation of his underlying rheumatoid arthritis compared to the general
public not so employed; (2) plaintiff’s job at defendant-employer for a person
without rheumatoid arthritis posed no increased risk of the type of elbow
problems plaintiff experienced; (3) plaintiff’s job contributed to the advanced
arthritis and the destruction of his bilateral elbow joints; and (4)
plaintiff’s elbow aggravation and the underlying disease process resulted in
plaintiff’s incapacity for continued work after 22 October 1992.

Another
orthopaedic surgeon specializing in upper extremities, Dr. George S. Edwards
(“Dr. Edwards”), testified that plaintiff’s job subjected plaintiff’s elbows to
microtrauma due to its repetitive nature and that the job could have placed
plaintiff at an increased risk of injuring his arms compared to the general
public.However, Dr. Edwards testified
that the job and plaintiff’s performance did not have an effect on the
cartilage destruction within plaintiff’s elbows and the job did not cause or
accelerate any permanent deterioration of his elbow joints.

In
addition, Dr. Douglas H. Adams (“Dr. Adams”) testified that although
plaintiff’s job required him to use his upper extremities repetitively, Dr. Adams
knew of no studies showing an association between work and the degree of force
on the joint and the progression of rheumatoid arthritis and the destruction of
joints.

On
appeal, plaintiff-appellant argues that the Commission committed reversible
error in finding for defendant-appellees, and presents eleven Assignments of
Error citing various challenges to the full Commission’s disposition of this
case.In their response, defendants
raise eight cross-assignments of error.

The
standard of review in an appeal from the full Commission is limited to
determining “whether any competent evidence supports the Commission’s findings
of fact and whether the findings of fact support the Commission’s conclusions
of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d
549, 553 (2000). Our review “‘goes no further than to determine whether the
record contains any evidence tending to support the finding.’” Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted).
The full Commission’s findings of fact are conclusive on appeal when supported
by competent evidence, even if there is evidence to support a contrary finding,
Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463
(1981), and may be set aside on appeal only “when there is a complete lack of
competent evidence to support them[.]” Young v. Hickory Bus. Furniture,
353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted).

Of
the eleven Assignments of Error submitted by plaintiff, only one challenges the
Commission’s Findings of Fact. In this assignment, plaintiff challenges the
validity of Finding of Fact Number 16, the Commission’s crediting of an
orthopaedist’s testimony over the testimony of a rheumatologist, premised upon
this Court’s applying a “most advanced specialty” doctrine that we have never
before adopted or recognized.Plaintiff
cites as authority a federal court case and argues that the court, or in this
case the Commission, should credit the testimony of the most advanced
specialist who treated a particular patient.See Cosgrove v. Provident Life and Accident Insurance Co., 317 F.
Supp. 2d 616 (E.D.N.C. 2004).This
Court is unable to ascertain the existence of such a doctrine, nor has this
Court ever recognized such a doctrine, and we decline to do so at this
time.In the particular case upon which
the plaintiff relies, the judge, acting as factfinder, merely credits the
testimony he finds most compelling and credible.In that case, the credible diagnosis happened to originate from
the specialist who treated the patient, as opposed to the primary care
physician. Id. at 625.

Under
our Workers’ Compensation Act, the Commission is the factfinding body.Brewer v. Powers Trucking Co., 256
N.C. 175, 182, 123 S.E.2d 608, 613 (1962).The Commission is the sole judge of the credibility of witnesses and the
ultimate factfinder whether it is conducting a hearing or reviewing a cold
record.Adams, 349 N.C. at 680-81,
509 S.E.2d at 413.On appeal, this
Court does not “‘weigh the evidence and decide the issue on the basis of its
weight . . . [t]he court’s duty goes no further than to determine whether the
record contains any evidence tending to support the finding.’” Deese,
352 N.C. at 115, 530 S.E.2d at 552 (citations omitted).

The
full Commission reviewed depositions from three qualified physicians, and
reviewed notes from another physician who was not present.It is clear that the Commission recognized
the competing opinions of two of these physicians, Drs. Caldwell and Edwards,
as to whether plaintiff’s underlying disease was either caused or exacerbated
by his job.Dr. Caldwell testified that
plaintiff’s job was an underlying aggravator, while Dr. Edwards testified that
plaintiff’s job “did not have an effect on the underlying cartilage destruction
within plaintiff’s elbow joints.”The
Commission acknowledged that Dr. Adams, a physician who did not treat plaintiff
but reviewed his medical history and notes, also stated that he knew of no
studies “showing an association between work and the degree of force on a joint
and . . . the destruction of joints.”Of the three physicians who testified, and the fourth whose notes were
provided, the Commission concluded that only Dr. Caldwell opined that
plaintiff’s job aggravated his underlying arthritis.For that reason, and others within the exclusive purview of the
Commission, the Commission concluded that plaintiff’s job was not the cause or
an exacerbating condition of his underlying rheumatoid arthritis.We find ample support in the record to
affirm the Commission’s findings of fact, and further find that those facts
support the corresponding conclusions of law.

The remaining Assignments of Error,
if undertaken, would require this Court to weigh evidence, assess the
credibility of witnesses, and substitute our judgment for that of the
Commission’s.As noted supra,
that is neither our role nor our right.The role of this Court is to determine whether the Commission’s findings
of fact are supported by the record, and if so, its decision is to be
affirmed.If there is competent
evidence to support the Commission’s findings, our inquiry ends.In the case at bar, we find that there is
competent evidence to support the Commission’s findings and we therefore affirm
its findings of fact, and affirm its ruling in favor of defendants.

Since
we find for the defendants on the merits of the case, there is no need to reach
their cross-assignments of error.

Affirmed.

Judge
WYNN concurs in a separate opinion.

Judge
Bryant concurs.

WYNN,
Judge, concurring.

I
agree with the result in the majority opinion but write separately to further
consider Plaintiff’s argument regarding the“most advanced specialty” doctrine, which has not been adopted by any
court in North Carolina.

It
is well established under our case law that findings of fact of the Industrial
Commission are upheld on appeal if those findings are supported by “any
competent evidence[.]”Deese v.
Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). It is important to note that Plaintiff does
not argue that the opinions of doctors with specialties other than rheumatology
would be incompetent evidence under the facts of this case.Instead, Plaintiff argues that the full
Commission should have afforded the greatest credibility or highest quality of
competence to the doctor/expert who has the “most advanced specialty” in the
field of medicine the disease or injury concerns.

Plaintiff
cites to Cosgrove v. Provident Life & Accident Ins. Co., 317 F.
Supp. 2d 616 (E.D.N.C. 2004), to support his theory of the “most advanced
specialty” doctrine.In Cosgrove,
the defendant insurance company denied the plaintiff’s claim for long term
disability after discounting the opinion of the plaintiff’s treating physician,
a specialist in the field of her disease, and instead relied upon the opinion
of another doctor, not in the same specialty, who never treated the plaintiff
but simply reviewed her medical records.Id. at 625.The court
never announced a doctrine of needing to give greater weight to the doctor with
the “most advanced specialty” but simply held that “there was a lack of
substantial, objective evidence to discount the reliability and weight of
Plaintiff’s uncontradicted evidence of symptoms[.]”Id.

Here,
Plaintiff was first treated by an orthopedist, Dr. Coonrad, who performed
surgery on his elbow.Later he was
treated by a rheumatologist Dr. Caldwell.Both doctors, and several others, testified.Plaintiff argues that the full Commission should have given
greater weight to Dr. Caldwell’s testimony or that Dr. Caldwell’s testimony
should be more competent than Dr. Coonrad’s testimony, because Dr. Caldwell, a
rheumatologist, has the most specific specialty regarding Plaintiff’s eventual
diagnosis of rheumatoid arthritis.

The
full Commission determines credibility of witnesses, not this Court.Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 413-14 (1998).Therefore, it is the full Commission’s decision whether to afford a
higher degree of credibility to the doctor or expert with the “most advanced
specialty.”On appeal, this Court is
limited to determining “whether any competent evidence supports the
Commission’s findings of fact[.]” Deese, 352 N.C. at 116, 530 S.E.2d at
553 (emphasis added).Therefore, even
if this Court gave greater deference to the doctor with the “most advanced
specialty,” Dr. Caldwell, the full Commission still relied on testimony of
doctors competent to testify, meeting the “any competent evidence” standard.See id.